Worker Walkaround Representative Designation Process

• Court: Occupational Safety And Health Administration
• Citation: 88 FR 59825
• Published date: 30 August 2023
• Record Number: 2023-18695

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List of Subjects in 27 CFR Part 9

Wine.

Proposed Regulatory Amendment

For the reasons discussed in the

preamble, we propose to amend title 27,

chapter I, part 9, Code of Federal

Regulations, as follows:

PART 9—AMERICAN VITICULTURAL

AREAS

■1. The authority citation for part 9

continues to read as follows:

Authority: 27 U.S.C. 205.

Subpart C—Approved American

Viticultural Areas

■2. Add § 9.ll to read as follows:

§9.ll San Luis Rey.

(a) Name. The name of the viticultural

area described in this section is ‘‘San

Luis Rey’’. For purposes of part 4 of this

chapter, ‘‘San Luis Rey’’ is a term of

viticultural significance.

(b) Approved maps. The 8 United

States Geological Survey (USGS)

1:24,000 scale topographic maps used to

determine the boundary of the

viticultural area are as follows:

(1) Oceanside, CA, 2018;

(2) San Luis Rey, CA, 2018;

(3) San Marcos, CA, 2018;

(4) Valley Center, CA, 2018;

(5) Bonsall, CA, 2018;

(6) Temecula, CA, 2018;

(7) Fallbrook, CA, 2018; and

(8) Morro Hill, CA, 2018.

(c) Boundary. The San Luis Rey

viticultural area is located in San Diego

County, California. The boundary of the

San Luis Rey viticultural area is

described as follows:

(1) The beginning point is on the

Oceanside map at the intersection of

Interstate 5 and the Marine Corps Base

(MCB) Camp Pendleton boundary. From

the beginning point, proceed northeast

for a total of 11.21 miles along the MCB

Camp Pendleton boundary, crossing

over the San Luis Rey map and onto the

Morro Hill map, and continuing along

the MCB Camp Pendleton boundary to

its intersection with the Naval Weapons

Station (NWS) Seal Beach Fallbrook

California boundary; then

(2) Proceed east along the NWS Seal

Beach Fallbrook California boundary for

a total of 6.85 miles, crossing onto the

Bonsall map and continuing north, then

west along the boundary, and crossing

back onto the Morro Hill map and

continuing northerly along the

boundary, crossing onto the Fallbrook

map, and continuing along the

boundary as it becomes concurrent with

the MCB Camp Pendleton boundary,

and continuing along the boundary to

its intersection with De Luz Road; then

(3) Proceed east along De Luz Road for

0.38 mile to its intersection with Sandia

Creek Drive; then

(4) Proceed northerly along Sandia

Creek Drive for a total of 3.98 miles,

crossing onto the Temecula map and

continuing along Sandia Creek Drive to

its intersection with an unnamed road

known locally as Rock Mountain Road;

then

(5) Proceed east along Rock Mountain

Road for 0.21 mile to its intersection

with the San Diego County line; then

(6) Proceed south then east along the

San Diego County line for 6.72 miles to

its intersection with an unnamed road

known locally as Old Highway 395;

then

(7) Proceed south along Old Highway

395 for a total of 14.9 miles, crossing

onto the Bonsall map and continuing

south along Old Highway 395 to its

intersection with an unnamed road

known locally as Old Castle Road; then

(8) Proceed east on Old Castle Road

for a total of 0.59 mile, crossing onto the

San Marcos map and continuing east

along Old Castle Road to its intersection

with Gordon Hill Road; then

(9) Proceed southeasterly along

Gordon Hill Road for 0.92 mile to its

intersection with the 800-foot elevation

contour; then

(10) Proceed east along the 800-foot

elevation contour for a total of 2.5 miles,

crossing onto the Valley Center map and

continuing east along the 800-foot

elevation contour to its intersection

with Canyon Country Lane; then

(11) Proceed northwest and then

south along Canyon Country Lane for

0.83 mile to its intersection with the

1,240-foot elevation contour; then

(12) Proceed east along the 1,240-foot

elevation contour for 2.90 miles to its

intersection with Cougar Pass Road;

then

(13) Proceed west then south along

Cougar Pass Road for 0.4 mile to its

intersection with Meadow Glen Way

East; then

(14) Proceed south along Meadow

Glen Way East for 0.46 mile to its

intersection with Hidden Meadows

Road; then

(15) Proceed southwest along Hidden

Meadows Road for 0.73 mile to its

intersection with Mountain Meadow

Road; then

(16) Proceed southwest along

Mountain Meadow Road for a total of

1.44 miles, crossing onto the San

Marcos map and continuing along

Mountain Meadow Road to the point

where Mountain Meadow Road becomes

known as Deer Springs Road just west

of Interstate 15; then

(17) Proceed southwest along Deer

Springs Road for 2.42 miles to its

intersection with an unnamed road

known locally as North Twin Oaks

Valley Road; then

(18) Proceed south along North Twin

Oaks Valley Road for 3.01 miles to its

intersection with an unnamed road

known locally as West Mission Road;

then

(19) Proceed northwest along West

Mission Road (which becomes South

Santa Fe Avenue) for a total of 3.9 miles

to its intersection with Robelini Drive;

then

(20) Proceed southwest along Robelini

Drive (which becomes Sycamore

Avenue) for a total of 0.55 mile to its

intersection with State Highway 78;

then

(21) Proceed northwest, then westerly

along State Highway 78 for a total of

9.09 miles, crossing onto the San Luis

Rey map and continuing westerly along

State Highway 78 to its intersection

with Interstate 5; then

(22) Proceed northwest along

Interstate 5 for a total of 3.14 miles,

crossing onto the Oceanside map and

returning to the beginning point.

Signed: August 21, 2023.

Mary G. Ryan,

Administrator.

Approved: August 22, 2023.

Thomas C. West, Jr.,

Deputy Assistant Secretary (Tax Policy).

[FR Doc. 2023–18587 Filed 8–29–23; 8:45 am]

BILLING CODE 4810–31–P

DEPARTMENT OF LABOR

Occupational Safety and Health

Administration

29 CFR Part 1903

[Docket No. OSHA–2023–0008]

RIN 1218–AD45

Worker Walkaround Representative

Designation Process

AGENCY

: Occupational Safety and Health

Administration (OSHA), Labor.

ACTION

: Proposed rule; request for

comments.

SUMMARY

: OSHA is proposing to amend

its Representatives of Employers and

Employees regulation to clarify that the

representative(s) authorized by

employees may be an employee of the

employer or a third party; such third-

party employee representative(s) may

accompany the OSHA Compliance

Safety and Health Officer (CSHO) when

they are reasonably necessary to aid in

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the inspection. OSHA is also proposing

clarifications of the relevant knowledge,

skills, or experience with hazards or

conditions in the workplace or similar

workplaces, or language skills of third-

party representative(s) authorized by

employees who may be reasonably

necessary to the conduct of a CSHO’s

physical inspection of the workplace.

OSHA has preliminarily determined

that the proposed changes will aid

OSHA’s workplace inspections by better

enabling employees to select a

representative of their choice to

accompany the CSHO during a physical

workplace inspection. Employee

representation during the inspection is

critically important to ensuring OSHA

obtains the necessary information about

worksite conditions and hazards. The

agency requests comments regarding the

proposed revisions.

DATES

: Submit comments by October 30,

2023. All submissions must provide

evidence of the submission date. (See

the following section titled

ADDRESSES

for instructions on making

submissions.)

ADDRESSES

: Comments may be

submitted as follows:

Written comments: You may submit

comments and attachments

electronically at https://

www.regulations.gov, which is the

Federal eRulemaking Portal. Follow the

online instructions for submitting

comments.

Instructions: All submissions must

include the agency’s name and docket

number for this rulemaking (Docket No.

OSHA–2023–0008). All comments,

including any personal information you

provide, are placed in the public docket

without change and may be made

available online at https://

www.regulations.gov. Therefore, OSHA

cautions interested parties about

submitting information that they do not

want made available to the public or

submitting materials that contain

personal information (either about

themselves or others), such as Social

Security numbers and birthdates.

Docket: To read or download

comments or other information in the

docket, go to Docket No. OSHA–2023–

0008 at https://www.regulations.gov. All

comments and submissions are listed in

the https://www.regulations.gov index;

however, some information (e.g.,

copyrighted material) is not publicly

available to read or download through

that website. All comments and

submissions, including copyrighted

material, are available for inspection

through the OSHA Docket Office.

Contact the OSHA Docket Office at (202)

693–2500 (TDY number 877–889–5627)

for assistance in locating docket

submissions.

FOR FURTHER INFORMATION CONTACT

:

Press inquiries: Frank Meilinger,

Director, OSHA Office of

Communications, telephone: (202) 693–

1999; email: meilinger.francis2@dol.gov.

General and technical inquiries:

Donald Klienback, OSHA Directorate of

Construction, telephone: (202) 693–

2020; email: klienback.donald.w@

dol.gov.

Copies of this Federal Register

notice and news releases: Electronic

copies of these documents are available

at OSHA’s web page at https://

www.osha.gov.

SUPPLEMENTARY INFORMATION

:

Table of Contents

I. Executive Summary

II. Background

A. The OSH Act and OSHA’s Inspection

Authority

B. Regulatory History and Interpretive

Guidance

C. Litigation and Subsequent Agency

Enforcement Actions

III. Legal Authority

IV. Summary and Explanation of Proposed

Changes

V. Preliminary Economic Analysis and

Regulatory Flexibility Act Certification

A. Cost

B. Benefits

C. Certification of No Significant Impact on

a Substantial Number of Small Entities

VI. Office of Management and Budget (OMB)

Review Under the Paperwork Reduction

Act

VII. Federalism

VIII. State Plans

IX. Unfunded Mandates Reform Act

X. Consultation and Coordination With

Indian Tribal Governments

XI. Environmental Impact Assessment

XII. Questions and Options

XIII. Public Participation

A. Public Submissions

XIV. List of Subjects

XV. Authority and Signature

I. Executive Summary

Section 8(e) of the OSH Act grants a

representative of the employer and a

representative authorized by employees

the opportunity to accompany OSHA

during the physical inspection of the

workplace for the purpose of aiding the

inspection. While OSHA long

interpreted one of section 8(e)’s

implementing regulations, 29 CFR

1903.8(c), to permit third-party

representatives authorized by

employees to accompany OSHA on the

walkaround inspection when reasonably

necessary to the conduct of an effective

and thorough physical inspection of the

workplace, a district court concluded

that interpretation was not consistent

with the regulation. OSHA is therefore

proposing to revise 29 CFR 1903.8(c) to

clarify the types of individuals who can

be a representative(s) authorized by

employees during OSHA’s physical

inspections of the workplace (also

referred to as the ‘‘walkaround

inspection’’). This revision will more

clearly align with section 8(e) of the

OSH Act, 29 U.S.C. 657(e), and with

OSHA’s longstanding interpretation of

the OSH Act.

OSHA is proposing two revisions of

29 CFR 1903.8(c). First, OSHA is

proposing to clarify that the

representative(s) authorized by

employees may be an employee of the

employer or a third party. Second,

OSHA is proposing to clarify that a

third-party representative authorized by

employees may be reasonably necessary

to the conduct of an effective and

thorough physical inspection of the

workplace by virtue of their knowledge,

skills, or experience. This proposed

revision clarifies that the employees’

options for third-party representation

during OSHA inspections are not

limited to only those individuals with

skills and knowledge similar to that of

the two examples provided in existing

regulatory text: Industrial Hygienist or

Safety Engineer.

The proposed revisions to 1903.8(c)

do not change the CSHO’s authority to

determine whether an individual is a

representative authorized by employees

(29 CFR 1903.8(b)). Also, the proposed

revisions do not affect other provisions

of section 1903 that limit participation

in walkaround inspections, such as the

CSHO’s authority to prevent an

individual from participating in the

walkaround inspection if their conduct

interferes with a fair and orderly

inspection (29 CFR 1903.8(d)) or the

employer’s right to limit entry of

employee authorized representatives

into areas of the workplace that contain

trade secrets (29 CFR 1903.9(d)).

The agency preliminarily concludes

that these changes would not increase

costs or compliance burdens for

employers.

II. Background

A. The OSH Act and OSHA’s Inspection

Authority

The Occupational Safety and Health

Act of 1970 (OSH Act or Act) was

enacted ‘‘to assure so far as possible

every working [person] in the Nation

safe and healthful working conditions

and to preserve our human resources.’’

29 U.S.C. 651 (b). To effectuate the Act’s

purpose, Congress authorized the

Secretary of Labor to promulgate

occupational safety and health

standards. See 29 U.S.C. 655. The Act

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also grants broad authority to the

Secretary to promulgate rules and

regulations related to inspections,

investigations, and recordkeeping. See

29 U.S.C. 657.

Section 8 of the OSH Act states that

OSHA’s inspection authority is essential

to carrying out the Act’s purposes and

provides that employers must give

OSHA access to inspect worksites

‘‘without delay.’’ 29 U.S.C. 657(a).

Section 8(e) of the Act provides

specifically that ‘‘[s]ubject to regulations

issued by the Secretary, a representative

of the employer and a representative

authorized by [its] employees shall be

given an opportunity to accompany [the

CSHO] for the purpose of aiding such

inspection.’’ 29 U.S.C. 657(e). Section

8(g) further authorizes the Secretary to

promulgate such rules and regulations

as the agency deems necessary to carry

out the agency’s responsibilities under

this Act, including rules and regulations

dealing with the inspection of an

employer’s establishment. 29 U.S.C.

657(g).

B. Regulatory History and Interpretive

Guidance

On May 5, 1971, OSHA proposed

rules and general policies for the

enforcement of the inspection, citation,

and penalty provisions of the OSH Act.

(36 FR 8376, May 5, 1971). OSHA

subsequently issued regulations for

inspections, citations, and proposed

penalties at 29 CFR part 1903. (36 FR

17850, Sept. 4, 1971).

The OSH Act and 29 CFR part 1903

provide OSHA CSHOs with significant

authority to conduct workplace

inspections. Part 1903 contains specific

provisions that describe the CSHO’s

authority and role in carrying out

inspections under the OSH Act. For

example, the CSHO is in charge of

conducting inspections and

interviewing individuals, and has

authority to permit additional employer

representatives and representative(s)

authorized by employees to participate

in the physical inspection of the

workplace. See 29 CFR 1903.8(a). In

addition, the CSHO has the authority to

resolve any disputes about who the

employer and employee representatives

are and to deny any person from

participating in the inspection whose

conduct interferes with a fair and

orderly inspection. See 29 CFR

1903.8(b), (d). The CSHO also has

authority to use various reasonable

investigative methods and techniques,

such as taking photographs, obtaining

environmental samples, and questioning

individuals while carrying out their

inspection. 29 CFR 1903.7(b); see also

1903.3(a).

Section 1903.8(c), the subject of this

proposed rulemaking, grants additional

authority to the CSHO to determine

whether third-party representatives

would aid in the physical workplace

inspection. This paragraph provides:

‘‘The representative(s) authorized by

employees shall be an employee(s) of

the employer. However, if in the

judgment of the Compliance Safety and

Health Officer, good cause has been

shown why accompaniment by a third

party who is not an employee of the

employer (such as an industrial

hygienist or a safety engineer) is

reasonably necessary to the conduct of

an effective and thorough physical

inspection of the workplace, such third

party may accompany the Compliance

Safety and Health Officer during the

inspection.’’ 29 CFR 1903.8(c). Section

1903.8, which primarily addresses

employer and employee representatives

during inspections, has not been revised

since 1971.

Since issuing its inspection-related

regulations, OSHA has provided

guidance on its interpretation of section

1903.8(c) and the meaning of

representative authorized by employees

for purposes of the OSHA walkaround

inspection. For example, on March 7,

2003, OSHA issued a letter of

interpretation to Mr. Milan Racic (Racic

letter), a health and safety specialist

with the International Brotherhood of

Boilermakers. (Docket ID OSHA–2023–

0008–0002). Mr. Racic asked whether a

union representative who files a

complaint on behalf of a single worker

could then also act as a walkaround

inspection representative in a workplace

that has no labor agreement or certified

bargaining agent. In its response letter,

OSHA stated that there was no

‘‘provision for a walkaround

representative who has filed a

complaint on behalf of an employee of

the workplace.’’ (Docket ID OSHA–

2023–0008–0002).

On February 21, 2013, OSHA issued

a letter of interpretation to Mr. Steve

Sallman (Sallman letter) of the United

Steel, Paper and Forestry, Rubber,

Manufacturing, Energy, Allied

Industrial and Service Workers

International Union. (Docket ID OSHA–

2023–0008–0003). Mr. Sallman asked

whether workers at a worksite without

a collective bargaining agreement could

designate a person affiliated with a

union or a community organization to

act on their behalf as a walkaround

representative. OSHA responded in the

affirmative, explaining that such person

could act on behalf of employees as long

as they had been authorized by

employees to serve as their

representative.

OSHA further explained that the right

is qualified by 29 CFR 1903.8, which

gives CSHOs the authority to determine

who can participate in an inspection.

OSHA noted that while 1903.8(c)

acknowledged that most employee

representatives will be employees of the

employer being inspected, the

regulation also explicitly allowed

walkaround participation by an

employee representative who is not an

employee of the employer when, in the

judgment of the CSHO, such

representative is reasonably necessary to

the conduct of an effective and thorough

physical inspection. OSHA explained

that such representatives are reasonably

necessary when they will make a

positive contribution to a thorough and

effective inspection.

OSHA gave several examples of how

an authorized employee representative

who was not an employee of the

employer could make an important

contribution to the inspection, noting

that the representative might have a

particular skillset or experience

evaluating similar working conditions

in a different facility. OSHA also

highlighted the usefulness to workers

and to the CSHO of an employee

representative who is bilingual or

multilingual to better facilitate

communication between employees and

the CSHO.

Additionally, OSHA noted that the

2003 Racic letter had inadvertently

created confusion among the regulated

community regarding OSHA’s

interpretation of an authorized

employee representative for walkaround

inspection purposes. OSHA explained

that the Racic letter merely stated that

a non-employee who files a complaint

does not necessarily have a right to

participate in an inspection arising out

of that complaint, but that it did not

address the rights of workers without a

certified or recognized collective

bargaining agent to have a

representative of their own choosing

participate in an inspection. OSHA

withdrew the Racic letter to eliminate

any confusion and then included its

interpretation of 29 CFR 1903.8(c) as to

who could serve as an authorized

employee representative when it

updated its Field Operations Manual

(FOM) CPL 02–00–159 on October 1,

2015. (Docket ID OSHA–2023–0008–

0004). The FOM explained that ‘‘[i]t is

OSHA’s view that representatives are

‘reasonably necessary’, when they make

a positive contribution to a thorough

and effective inspection’’ and

recognized that there may be cases in

which workers without a certified or

recognized bargaining agent would

authorize a third party to represent the

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workers on the inspection. Id. OSHA

noted that ‘‘[t]he purpose of a

walkaround representative is to assist

the inspection by helping the

compliance officer receive valuable

health and safety information from

workers who may not be able or willing

to provide such information absent the

third-party participants.’’ Id.

C. Litigation and Subsequent Agency

Action

In September 2016, several years after

OSHA issued the Sallman letter, the

National Federation of Independent

Business (NFIB) filed a suit in the

district court for the Northern District of

Texas challenging the Sallman letter,

arguing it should have been subject to

notice and comment rulemaking and

that it conflicted with OSHA’s

regulations and exceeded OSHA’s

statutory authority. Nat’l Fed’n of Indep.

Bus. v. Dougherty, No. 3:16–CV–2568–

D, 2017 WL 1194666 (N.D. Tex. Feb. 3,

2017). On February 3, 2017, the district

court concluded that OSHA’s

interpretation as stated in the Sallman

letter was not consistent with 29 CFR

1903.8(c) and such a change to a

regulation could not be made without

notice and comment rulemaking. Id. at

*11. The district court held that the

letter ‘‘plainly contradicts § 1903.8(c)’s

requirement that the employee

representative be an employee himself.’’

Id.

Nevertheless, the court rejected

NFIB’s claim that the Sallman letter

conflicted with the OSH Act, finding

that OSHA’s Sallman letter of

interpretation was ‘‘a persuasive and

valid construction of the Act.’’ Id. at

*12. The court concluded that ‘‘the Act

merely provides that the employee’s

representative must be authorized by

the employees, not that the

representative must also be an employee

of the employer.’’ Id.

Following this decision, on April 25,

2017, OSHA rescinded the Sallman

letter. (Docket ID OSHA–2023–0008–

0005). OSHA also revised the FOM to

remove language that incorporated the

Sallman letter. OSHA is now engaging

in notice and comment rulemaking to

clarify who may serve as a

representative authorized by employees

for the purpose of walkaround

inspections.

III. Legal Authority

The OSH Act authorizes the Secretary

of Labor to issue safety and health

‘‘standards’’ and other ‘‘regulations.’’

See, e.g., 29 U.S.C. 655, 657. An

occupational safety and health standard,

issued pursuant to section 6 of the Act,

prescribes measures to be taken to

remedy an identified occupational

hazard. Other regulations issued

pursuant to general rulemaking

authority found, inter alia, in section 8

of the Act, establish enforcement or

detection procedures designed to further

the goals of the Act generally. See 29

U.S.C. 657(c); Workplace Health and

Safety Council v. Reich, 56 F. 3d 1465,

1468 (D.C. Cir. 1995). The proposed

amendments in this notice are to a

regulation issued pursuant to authority

expressly granted by section 8 of the

Act. 29 U.S.C. 657(e) (authority to

promulgate regulations related to

employer and employee representation

during an inspection) and (g) (authority

to promulgate rules and regulations

dealing with workplace inspections).

These proposed revisions clarify

employees’ statutory right to a

walkaround representative under

section 8 of the OSH Act and do not

impose any new substantive inspection-

related requirements.

Numerous provisions of the OSH Act

underscore Congress’ understanding

that OSHA’s ability to conduct

comprehensive inspections is essential

to fulfilling the purposes of the OSH Act

to protect working people from

occupational safety and health hazards.

Congress provided OSHA with broad

authority to conduct inspections of

workplaces and records, to require the

attendance and testimony of witnesses,

and to require the production of

evidence. 29 U.S.C. 657(b). OSHA’s

ability to carry out these workplace

inspections is critical to the OSH Act’s

entire enforcement scheme. 29 U.S.C.

658 (authorizing OSHA to issue

citations for violations following an

inspection or investigation); 659

(citations shall be issued within a

reasonable time after inspection or

investigation). Moreover, any approved

State occupational safety and health

plan must provide for an OSHA

inspector’s right of entry and inspection

that is at least as effective as the OSH

Act. 29 U.S.C. 667(c)(3).

To enable OSHA to conduct robust

inspections, the OSH Act grants the

Secretary broad authority to enact

inspection-related regulations. Section

8(g)(2) of the Act generally empowers

the Secretary to prescribe such rules and

regulations as the Secretary may deem

necessary for carrying out inspection

activity. See 29 U.S.C. 657(g)(2). Section

8(e) also specifically contemplates

regulations related to employee and

employer representation during OSHA’s

inspection of the workplace. 29 U.S.C.

657(e).

In addition to granting OSHA broad

authority to conduct comprehensive

workplace inspections and promulgate

regulations to effectuate those

inspections, Congress also recognized

the importance of ensuring employee

participation and representation in the

inspection process. The legislative

history of section 8 of the OSH Act

shows Congress’ intent to provide

representatives authorized by

employees with an opportunity to

accompany the inspector in order to

benefit the inspection process and

‘‘provide an appropriate degree of

involvement of employees.’’ S. Rep. No.

91–1282 91st Cong., 2nd Sess. (1970),

reprinted in Legislative History of the

Occupational Safety and Health Act of

1970 at 151 (Comm. Print 1971). Senator

Harrison A. Williams of New Jersey,

who was a sponsor of the bill that

became the OSH Act, explained that the

opportunity for workers themselves and

a representative of their choosing to

accompany OSHA inspectors was

‘‘manifestly wise and fair’’ and ‘‘one of

the key provisions of the bill.’’

Subcomm. on Labor of the Senate

Comm. on Labor and Public Welfare,

92d Cong. 1st Sess., reprinted in

Legislative History of the Occupational

Safety and Health Act of 1970, at 430

(Comm. Print. 1971).

The OSH Act’s legislative history

further indicates that Congress

considered potential concerns related to

the presence of a representative

authorized by employees at the

inspection and ultimately decided to

expressly include this right in section

8(e) of the Act. Congressional debate

around this issue included concern from

some members of Congress that a

representative authorized by employees’

presence in the inspection would cause

an undue burden on employers or be

used as ‘‘an effort to ferment labor

unrest.’’ See Comments of

Congressperson William J. Scherle of

Iowa, 92d Cong. 1st Sess., reprinted in

Legislative History of the Occupational

Safety and Health Act of 1970, at 1224

(Comm. Print 1971); see also Comments

of Congressperson Michel of Illinois, id.

at 1057. Similarly, Senator Peter

Dominick of Colorado proposed an

amendment to the Senate bill that

would have removed the right of a

representative authorized by the

employees to accompany the CSHO and

instead would have only required that

the CSHO consult with employees or

their representative at ‘‘a reasonable

time.’’ Proposed Amendment No. 1056.,

92d Cong. 1st Sess., reprinted in

Legislative History of the Occupational

Safety and Health Act of 1970, at 370

(Comm. Print 1971). One of the stated

reasons for the proposed amendment

was a concern that ‘‘[t]he mandatory

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‘walk-around’ provisions now in the bill

could . . . lead to ‘collective bargaining’

sessions during the course of the

inspection and could therefore interfere

both with the inspection and the

employer’s operations.’’ Id. at 372.

This proposed amendment was

rejected, and Section 8(e) of the OSH

Act reflects Congress’ considered

judgment of the best way to strike the

balance between employers’ concerns

about workplace disruptions and the

critical importance of employee

representation in the inspection process.

And while section 8(e) underscores the

importance of employee representation

in OSHA’s workplace inspection, the

Act itself does not place restrictions on

who can be a representative authorized

by employees. See 29 U.S.C. 657(e); see

also Matter of Establishment Inspection

of Caterpillar Inc., 55 F.3d 334, 338 (7th

Cir. 1995) (‘‘[T]he plain language of

§ 8(e) permits private parties to

accompany OSHA inspectors,’’); Nat’l

Fed’n of Indep. Bus., 2017 WL 1194666,

at *12 (‘‘[T]he Act merely provides that

the employee’s representative must be

authorized by the employee, not that the

representative must also be an employee

of the employer.’’).

Instead, the Act authorizes the

Secretary of Labor (via OSHA) to issue

regulations and determine who may be

an authorized employee representative

for purposes of the OSHA inspection. 29

U.S.C. 657(e). Congress intended to give

the Secretary of Labor the authority to

issue regulations related to determining

the specifics and resolving the question

of who could be an authorized

employee representatives for purposes

of the walkaround inspection. See

Legislative History of the Occupational

Safety and Health Act of 1970, at 151

(Comm. Print 1971) (‘‘Although

questions may arise as to who shall be

considered a duly authorized

representative of employees, the bill

provides the Secretary of Labor with

authority to promulgate regulations for

resolving this question.’’).

While the OSH Act grants the

Secretary of Labor broad authority to

inspect workplaces ‘‘without delay’’ to

find and remedy safety and health

violations, 29 U.S.C. 657(a)(1)–(2), these

inspections must be carried out in a

manner consistent with the Fourth

Amendment of the U.S. Constitution

regarding reasonable searches. See

Marshall v. Barlow’s Inc., 436 U.S. 307

(1978). If an employer refuses entry,

OSHA seeks a warrant, as required by

the Fourth Amendment. Id. at 313; see

also 29 CFR 1903.4. At times OSHA

might seek an anticipatory warrant to

inspect a worksite, such as if OSHA has

been refused entry to inspect a

workplace in the past and anticipates

that the employer might refuse again

without proof of a warrant. See 29 CFR

1903.4(b). Because OSHA’s inspections

are conducted in accordance with the

Fourth Amendment, they do not

constitute a ‘‘physical taking’’ under the

Takings Clause of the Fifth Amendment.

See Cedar Point Nursery v. Hassid, 141

S. Ct. 2063, 2079 (2021) (‘‘Because a

property owner traditionally had no

right to exclude an official engaged in a

reasonable search, government searches

that are consistent with the Fourth

Amendment and state law cannot be

said to take any property right from

landowners.’’) (internal citations

omitted); Matter of Establishment

Inspection of Caterpillar Inc., 55 F.3d at

339–41 (upholding warrant that

authorized participation of employee

representatives as consistent with the

Fourth Amendment).

Based on the foregoing, OSHA has

determined that section 8(e) of the OSH

Act, as well as the Act’s history and

purpose, support OSHA’s longstanding

interpretation that the representative(s)

authorized by employees may be

employees of the employer or a third

party and the agency’s proposed

revisions to 29 CFR 1903.8(c).

III. Summary and Explanation of

Proposed Changes

Section 8(e) of the OSH Act, 29 U.S.C.

657(e), Inspections, Investigations, and

Recordkeeping, states that ‘‘[s]ubject to

regulations issued by the Secretary’’ a

representative authorized by employees

‘‘shall be given an opportunity to

accompany the [CSHO] during the

physical inspection of any workplace

under subsection (a) for the purpose of

aiding such inspection.’’ The first

sentence of existing section 1903.8(c)

states that an authorized employee

representative(s) shall be an employee(s)

of the employer being inspected.

However, the second sentence of

paragraph (c) provides an exception for

the presence of a third party if the

CSHO determines there is good cause

shown why their presence is reasonably

necessary to conduct an effective and

thorough physical inspection of the

workplace. Paragraph (c) provides

industrial hygienists and safety

engineers as two examples of helpful

non-employees who a CSHO might

determine are reasonably necessary to

include in the inspection.

Since its promulgation in 1971, OSHA

has interpreted section 1903.8(c) to

allow third parties to serve as

authorized employee representatives on

the walkaround inspection when

reasonably necessary. However, as

described in Background, Section II.C of

this preamble, a district court held that

OSHA’s interpretation of paragraph (c)

was inconsistent with the regulatory

text as written. See Nat’l Fed’n of Indep.

Bus., 2017 WL 1194666, at *11. In

OSHA’s experience, representatives

authorized by employees are usually

employed by the employer. However,

under the OSH Act, they need not be.

Id. at *12. OSHA is therefore proposing

to amend 29 CFR 1903.8(c) to clarify

that, for the purpose of the walkaround

inspection, the representative(s)

authorized by employees may be an

employee of the employer or, when they

are reasonably necessary to aid in the

inspection, a third party.

These changes will ensure employees

are able to select trusted and

knowledgeable representatives of their

choice, leading to more effective

inspections. The OSH Act gives

employees in all workplaces—whether

they have a collective bargaining

agreement or not—the right to have a

representative authorized by them to

accompany OSHA during a workplace

inspection for purposes of aiding the

inspection. See 29 U.S.C. 657(e). The

criteria outlined in paragraph (c)

therefore applies to all worksites that

OSHA inspects.

When the representative(s) authorized

by employees are not employed by the

employer, they may accompany the

CSHO during the inspection if in the

judgment of the CSHO, good cause has

been shown why they are reasonably

necessary to the conduct of an effective

and thorough physical inspection of the

workplace. OSHA proposes to revise

paragraph (c) to clarify that third-party

representatives authorized by

employees may have a variety of skills,

knowledge, or experience that could aid

the CSHO’s inspection. This includes

knowledge, skills, or experience with

particular hazards or conditions in the

workplace or similar workplaces, as

well as any relevant language skills a

representative may have to facilitate

better communication between workers

and the CSHO. Therefore, OSHA

proposes to delete the examples of

industrial hygienists and safety

engineers currently in paragraph (c) so

that the focus is properly on the

knowledge, skills, or experience of the

individual rather than their professional

discipline. This proposed deletion does

not signal that an industrial hygienist or

safety engineer cannot be a

representative authorized by employees.

In OSHA’s experience, there are a

multitude of third parties who might

serve as representatives authorized by

employees for purposes of the OSHA

walkaround inspection. The examples

discussed in this proposal are not

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exhaustive and OSHA seeks comment,

including any data or anecdotal

examples, of individuals who might be

selected by employees to serve as their

authorized employee representative in

an OSHA walkaround inspection.

One scenario where OSHA has

encountered third-party employee

representatives is in union workplaces

where employees have designated a

union representative, such as an elected

local union leader, business agent, or

safety and health specialist, to be their

representative for the walkaround

inspection. These representatives are

often employees of the union rather

than the employer being inspected.

Third-party representation may also

arise in workplaces without collective

bargaining agreements where employees

have designated a representative from a

worker advocacy group, community

organization, or labor union to serve as

their representative in an OSHA

inspection.

Relatedly, there may be safety

organizations, such as local safety

councils, with safety professionals or

technical representatives for the

equipment used and operations

performed at the employee’s worksite.

Section 1903.8(c) as proposed would

more explicitly permit employees to

designate such a safety professional or

technical representative as their

authorized employee representative.

Another scenario where employees

may wish to designate a third-party

representative is on multi-employer

worksites or joint-employer worksites

where it is not always clear at the time

of the walkaround inspection which

employees are employed by which

employer. On many worksites,

employees with different employers

may work near each other and may have

knowledge of the workplace conditions,

work practices, and hazards; in some

cases, they may even perform the same

or similar work. On worksites like these,

it is foreseeable that employees may

choose to designate a third party as their

representative for the walkaround

inspection. Likewise, on worksites

where non-union employees work in

proximity to union employees,

employees may wish to designate the

union representative to speak of

worksite conditions and operations on

their behalf.

There may also be circumstances

where employees are not fluent in

English (or another language spoken by

the CSHO) and want a trusted

representative to allow for open and

effective communication with the CSHO

regarding workplace conditions. For

example, employees might determine

that a bilingual representative or an

interpreter should represent them on the

inspection and the CSHO might find

such a representative is useful to ensure

the CSHO receives an accurate account

of workers’ knowledge and experience

with safety and health conditions in the

workplace.

In other situations, employees may be

reluctant to speak directly or candidly

with government officials for a number

of reasons. For example, some workers,

such as immigrants, refugees, or other

vulnerable workers, may be unfamiliar

with OSHA and the agency’s inspection

process, face cultural barriers, or fear

that their employer will retaliate against

them for speaking to OSHA. In these

situations, employees may not feel

comfortable participating in OSHA’s

inspection without a trusted presence,

which would negatively affect the

CSHO’s ability to obtain important

information about workplace hazards

and conditions. Worker advocacy

organizations, labor organization

representatives, consultants, or

attorneys who are experienced in

interacting with government officials or

have relevant cultural competencies

may be authorized by employees to

represent them on walkaround

inspections. The CSHO may determine

such third-party representatives are

reasonably necessary to the conduct of

an effective and thorough physical

workplace inspection if their presence

during the walkaround inspection

would enable more open and candid

communication with employees who

may not otherwise be willing to

participate in the inspection.

In general, OSHA seeks comment on

why employees may wish to be

represented by a third-party

representative. Additionally, OSHA

seeks comment and examples of third-

party representatives who have been or

could be reasonably necessary to the

conduct of an effective and thorough

physical inspection of the workplace.

Once the CSHO is notified that the

employees have authorized a third party

to represent them during a walkaround

inspection, the CSHO would allow the

third party to participate in the

inspection so long as the CSHO

determines that they would be

reasonably necessary to aid in the

inspection. The third party should have

relevant skills, knowledge, or

experience that would be helpful to

OSHA’s inspection despite not being

directly employed by the employer.

OSHA has found that third-party

representatives can help ensure that

OSHA’s walkaround inspection is

comprehensive. In one example from

2012, a worker for a company removing

asbestos at a worksite reported safety

concerns to OSHA and a third party.

The third party contacted OSHA and a

community organization on behalf of

the workers to ensure their safety and

health concerns were fully

communicated to and understood by the

CSHO. The community organization’s

attorney and a former employee of the

workplace were chosen as the

employees’ representatives to

participate in the walkaround

inspection. OSHA found the presence of

both individuals to be very beneficial to

the inspection because the

representatives were able to clearly

identify and communicate safety

concerns to the CSHO during the

walkaround. Many of the exposed

workers on this worksite were not fluent

in English, and having representatives

who the workers trusted and facilitated

communication with the CSHO enabled

OSHA to conduct numerous worker

interviews and better investigate the

workplace conditions. OSHA seeks

comment providing examples or

information regarding any other unique

skills of representatives authorized by

employees that have been helpful or

added safety and health value to the

CSHO’s physical inspection of the

workplace.

The proposed revisions to paragraph

(c) do not change the existing

precondition that the CSHO must

determine that any third-party employee

representative’s participation is

reasonably necessary to the conduct of

an effective and thorough inspection.

These proposed revisions also do not

implicate any other limitations found

elsewhere in part 1903.

For example, paragraph 1903.8(a)

explains that the CSHO is in charge of

the inspection process. 29 CFR

1903.8(a). Paragraph 1903.8(b)

authorizes the CSHO to resolve any

disputes as to who the authorized

representatives are, and if the CSHO is

unable to determine who is the

representative authorized by employees,

the CSHO will then consult a reasonable

number of employees concerning

matters of safety and health in the

workplace. 29 CFR 1903.8(b). Paragraph

1903.8(d) authorizes the CSHO to deny

individuals from participating in the

inspection if their conduct interferes

with a fair and orderly inspection

process. 29 CFR 1903.8(d). Therefore,

the CSHO considers a range of factors

when determining who can participate

in the walkaround inspection as a

representative authorized by employees.

In addition to the limitations in 29

CFR 1903.8, employers also maintain

the right to request that areas of the

facility containing trade secrets be off-

limits to the representatives authorized

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by employee(s) who do not work in that

particular part of the facility. 29 CFR

1903.9(d). As explained in Background,

Section II. of this preamble, the

proposed revisions to 1903.8(c) do not

alter or limit any of these other

provisions related to the CSHO’s

determinations or the inspection

process.

Finally, OSHA notes that paragraph

1903.8(c) addresses representatives

authorized by employees for purposes of

OSHA’s physical inspections of

workplaces. While OSHA proposes

changes to this paragraph to clarify the

relevant knowledge, skills, experience

with hazards or conditions in the

workplace or similar workplaces, or

language skills of third-party

representatives authorized by

employees who may be reasonably

necessary to aid in the CSHO’s

inspection, these proposed revisions are

not intended to narrow or otherwise

limit OSHA’s authority to conduct

effective and thorough workplace

inspections, including its authority to be

accompanied by other types of third

parties or experts who may be needed

to properly conduct the inspection. See

generally, 29 U.S.C. 657(a), (b); see also

29 CFR 1903.4(b)(3).

OSHA seeks comment on whether the

proposed changes to paragraph (c) are

clear regarding representatives

authorized by employees for purposes of

walkaround inspections. Why or why

not? OSHA also seeks comment on how

to best communicate the right of all

employees to employee representation

on a physical inspection of the

workplace.

V. Preliminary Economic Analysis and

Regulatory Flexibility Act Certification

Executive Orders 12866 and 13563

require OSHA estimate the benefits,

costs, and net benefits of regulations.

Executive Orders 12866 and 13563, the

Regulatory Flexibility Act (5 U.S.C.

601–612), and the Unfunded Mandates

Reform Act (UMRA) (2 U.S.C. 1532(a))

also require OSHA to estimate the costs,

assess the benefits, and analyze the

impacts of certain rules that the agency

promulgates. Executive Order 13563

emphasizes the importance of

quantifying both costs and benefits,

reducing costs, harmonizing rules, and

promoting flexibility. This proposal is

not significant under section 3(f)(1) of

Executive Order 12866, as amended by

Executive Order 14094, nor is it a major

rule under the Unfunded Mandates

Reform Act or Section 804 of the Small

Business Regulatory Enforcement

Fairness Act of 1996 (5 U.S.C. 801 et

seq.).

OSHA is proposing to revise and

clarify its requirements for employee

authorized representation during

OSHA’s physical inspections of the

workplace to clarify that the

representative(s) authorized by

employees may be an employee of the

employer or a third party. Additionally,

OSHA is proposing to further clarify the

relevant knowledge, skills, or

experience with hazards or conditions

in the workplace or similar workplaces,

or language skills of third-party

representative(s) authorized by

employees who may accompany an

OSHA Compliance Safety and Health

Officer (CSHO) when they are

reasonably necessary to the conduct of

an effective and thorough physical

inspection of the workplace. The

proposed revisions will also clarify that

the employees’ options for third-party

representation during OSHA

inspections are not limited to the two

examples provided in existing

regulatory text: Industrial Hygienist or

Safety Engineer. OSHA has

preliminarily determined that these

clarifications do not introduce a new or

expanded burden on employers.

As discussed earlier in Background,

Section II. of this preamble, OSHA

published rules and general policies for

the enforcement of the inspection,

citation, and penalty provisions of the

OSH Act on September 4, 1971. These

include Section 1903.8(c), the subject of

this proposed rulemaking, which grants

authority to the CSHO to determine

whether a third-party representative

would aid the physical workplace

inspection and to have that

representative accompany the CSHO on

the inspection.

A. Costs

This proposed rule imposes no new

burden on employers and does not

require them to take any action to

comply. The proposed rule clarifies who

can be an authorized employee

representative during OSHA’s

walkaround inspection. Regulatory

impact analysis is meant to estimate the

costs of a change from the current

situation without the proposed or final

rule to a world where the proposed or

final rule exists. This proposed rule

simply clarifies employee rights and

OSHA’s authority with regard to

inspection procedures. The proposed

clarification does not impose any costs

on employers.

In evaluating potential costs, OSHA

considered that employers may have

policies and rules for third parties, such

as visitors must wear PPE on site or

participate in a safety briefing before

entering as well as procedures in place

to protect confidential business

information from third parties who may

be on site. However, such policies are

not required by this regulation, and

therefore any associated costs are

therefore not attributable to this

proposed rule. Moreover, OSHA

believes there would be no real cost to

an employer to have an additional

visitor on site. PPE could be supplied

from extra PPE that might be available

on site for visitors or could be supplied

by the third party. There is no cost to

have one more individual present

during any potential safety briefing

since any potential briefing would be

given regardless of the number of

individual present.

In addition, this proposed rule does

not require the employer make a third

party available nor does it require the

employer to pay for that third party’s

time. While there is an opportunity cost

to the third party insomuch as their time

is being spent on an inspection versus

other activities they could be engaged

in, that time is not compensated by the

employer whose worksite is being

inspected and is not a burden on that

employer. OSHA has preliminarily

determined that this proposed rule does

not impose costs on employers. The

agency welcomes comment on this

determination and information on costs

the public believes OSHA should

consider.

B. Benefits

While there are no new costs borne by

employers associated with this

proposal, clarifying Section 1903.8(c)

will reinforce the benefits of the OSH

Act. Third-party employee

representatives—given their knowledge,

expertise, or skills with hazardous

workplace conditions—can increase

employee participation and help ensure

that CSHOs conduct comprehensive

workplace inspections, leading to safer

workplaces. OSHA welcomes

information, data, and comments on

anticipated cost savings and benefits.

C. Certification of No Significant Impact

on a Substantial Number of Small

Entities

The proposed rule does not impose

costs of compliance on employers.

Therefore, OSHA certifies that, if

promulgated, the proposed rule will not

have a significant economic impact on

a substantial number of small entities.

VI. OMB Review Under the Paperwork

Reduction Act

This proposed rule for Worker

Walkaround Representative Designation

Process contains no information

collection requirements subject to OMB

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approval under the Paperwork

Reduction Act of 1995 (PRA) (44 U.S.C.

3501 et seq.) and its implementing

regulations at 5 CFR part 1320. The PRA

defines a collection of information as

‘‘the obtaining, causing to be obtained,

soliciting, or requiring the disclosure to

third parties or the public, of facts or

opinions by or for an agency, regardless

of form or format.’’ 44 U.S.C. 3502(3)(A).

Under the PRA, a Federal agency cannot

conduct or sponsor a collection of

information unless OMB approves it,

and the agency displays a currently

valid OMB control number (44 U.S.C.

3507). Also, notwithstanding any other

provision of law, no employer shall be

subject to penalty for failing to comply

with a collection of information if the

collection of information does not

display a currently valid OMB control

number (44 U.S.C. 3512).

VII. Federalism

OSHA reviewed this proposed rule in

accordance with the Executive Order on

Federalism (E.O. 13132, 64 FR 43255,

August 10, 1999), which requires that

Federal agencies, to the extent possible,

refrain from limiting State policy

options, consult with States prior to

taking any actions that would restrict

State policy options, and take such

actions only when clear constitutional

and statutory authority exists, and the

problem is national in scope. This

proposal merely clarifies requirements

related to employee representation

during workplace safety and health

inspections conducted by OSHA under

the OSH Act. Because these inspections

are conducted by OSHA, not States, and

occur under the authority of federal law,

OSHA does not believe that the

proposal would restrict any State policy

options.

Section 18(a) of the OSH Act states

that ‘‘[n]othing in this Act shall prevent

any State agency or court from asserting

jurisdiction under State law over any

occupational safety or health issue with

respect to which no standard is in effect

under section 6’’ (see 29 U.S.C. 667(a)).

Because this rulemaking action involves

a ‘‘regulation’’ issued under Section 8 of

the OSH Act (29 U.S.C. 657), and not an

occupational safety and health standard

under section 6 of the OSH Act (29

U.S.C. 655), it does not preempt State

law under section 18(a). See 29 U.S.C.

667(a). The effect of a rule on states and

territories with OSHA-approved

occupational safety and health State

Plans is discussed in Section VIII, State

Plans.

VIII. State Plans

As discussed in the Summary and

Explanation section of this preamble,

this proposed rule would revise the

language in OSHA’s Representatives of

employers and employees regulation,

found at 29 CFR 1903.8(c), to explicitly

clarify that the representative(s)

authorized by employees may be an

employee of the employer or a third

party for purposes of an OSHA

walkaround inspection. Additionally,

OSHA is proposing to further clarify

that when the CSHO has good cause to

find that a representative authorized by

employees who is not an employee of

the employer would aid in the

inspection, for example because they

have knowledge or experience with

hazards in the workplace, or other skills

that would aid the inspection, the CSHO

may allow the employee representative

to accompany the CSHO on the

inspection.

Among other requirements, section 18

of the OSH Act requires OSHA-

approved State Plans to enforce

occupational safety and health

standards in a manner that is at least as

effective as Federal OSHA’s standards

and enforcement program, and to

provide for a right of entry and

inspection of all workplaces subject to

the Act that is at least as effective as that

provided in section 8 (29 U.S.C.

667(c)(2)–(3)). As described above and

in the Summary and Explanation of this

preamble, OSHA believes that these

proposed clarifying revisions would

enhance the effectiveness of OSHA’s

inspections and enforcement of

occupational safety and health

standards. Therefore, OSHA has

preliminarily determined that, within

six months of the promulgation of a

final rule, State Plans would be required

to adopt regulations that are identical or

‘‘at least as effective’’ as this rule, unless

they demonstrate that such amendments

are not necessary because their existing

requirements are already ‘‘at least as

effective’’ in protecting workers as the

Federal rule. See 29 CFR 1953.4(b)(3).

Of the 29 States and Territories with

OSHA-approved State Plans, 22 cover

both public and private-sector

employees: Alaska, Arizona, California,

Hawaii, Indiana, Iowa, Kentucky,

Maryland, Michigan, Minnesota,

Nevada, New Mexico, North Carolina,

Oregon, Puerto Rico, South Carolina,

Tennessee, Utah, Vermont, Virginia,

Washington, and Wyoming. The

remaining seven States and Territories

cover only state and local government

employees: Connecticut, Illinois, Maine,

Massachusetts, New Jersey, New York,

and the Virgin Islands.

IX. Unfunded Mandates Reform Act

OSHA reviewed this proposal

according to the Unfunded Mandates

Reform Act of 1995 (‘‘UMRA’’; 2 U.S.C.

1501 et seq.). As discussed above in

Section V of this preamble, the agency

preliminarily determined that this

proposal would not impose costs on any

private- or public-sector entity.

Accordingly, this proposal would not

require additional expenditures by

either public or private employers.

As noted above, the agency’s

regulations and standards do not apply

to State and local governments except in

States that have elected voluntarily to

adopt a State Plan approved by the

agency. Consequently, this proposal

does not meet the definition of a

‘‘Federal intergovernmental mandate.’’

See Section 421(5) of the UMRA (2

U.S.C. 658(5)). Therefore, for the

purposes of the UMRA, the agency

certifies that this proposal would not

mandate that State, local, or Tribal

governments adopt new, unfunded

regulatory obligations. Further, OSHA

concludes that the rule would not

impose a Federal mandate on the

private sector in excess of $100 million

(adjusted annually for inflation) in

expenditures in any one year.

X. Consultation and Coordination With

Indian Tribal Governments

OSHA reviewed this proposed rule in

accordance with Executive Order 13175

(65 FR 67249) and has preliminarily

determined that it would not have

‘‘tribal implications’’ as defined in that

order. The proposed clarifications to 29

CFR 1903.8(c), if promulgated, would

not have substantial direct effects on

one or more Indian tribes, on the

relationship between the Federal

government and Indian tribes, or on the

distribution of power and

responsibilities between the Federal

government and Indian tribes. OSHA

seeks comment on its preliminary

determination. Additionally, OSHA

plans to consult with the appropriate

tribal entities regarding its preliminary

determination.

XI. Environmental Impact Assessment

OSHA reviewed the proposed rule in

accordance with the requirements of the

National Environmental Policy Act

(NEPA) (42 U.S.C. 4321 et seq.), the

regulations of the Council on

Environmental Quality (40 CFR parts

1500 through 1508), and the Department

of Labor’s NEPA procedures (29 CFR

part 11). The agency finds that the

revisions included in this proposal

would have no major negative impact

on air, water, or soil quality, plant or

animal life, the use of land or other

aspects of the environment.

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Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Proposed Rules

XII. Questions and Options

OSHA invites stakeholders to

comment on all aspects of this proposal.

In addition, OSHA is soliciting

stakeholder input on regulatory options

to allow for potential regulatory

flexibility regarding the content of any

final rule resulting from this

rulemaking. In particular, OSHA seeks

input on whether to maintain the

existing requirement in 29 CFR

1903.8(c) for a third-party employee

representative to be ‘‘reasonably

necessary to the conduct of an effective

and thorough physical inspection of the

workplace’’ given that Section 8(e) of

the OSH Act more generally provides

that employee representatives ‘‘shall be

given an opportunity to accompany’’ the

CSHO ‘‘during the physical inspection

of any workplace . . . for the purpose

of aiding such inspection.’’ 29 U.S.C.

657(e).

Under OSHA’s implementing

regulations, OSHA defers to the

employer’s determination regarding

which employer representative would

aid the inspection. See 29 CFR

1903.8(a). On the other hand, currently,

OSHA defers to the employees’

determination regarding which

representative would aid the inspection

only if that representative is employed

by the employer. See 29 CFR 1903.8(c).

When the representative authorized by

employees is a third party, the CSHO

must determine that there is good cause

why the third-party representative is

reasonably necessary to the conduct of

an effective and thorough physical

inspection of the workplace. See 29 CFR

1903.8(c). If the CSHO makes that

determination, the third-party employee

representative may accompany the

CSHO during the physical inspection of

the worksite. Note that the CSHO is

authorized to resolve any dispute as to

who the employer’s and employees’

authorized representatives are and deny

the right of accompaniment to any

person whose conduct would interfere

with a fair and orderly inspection. See

29 CFR 1903.8(b), (d).

OSHA solicits feedback regarding the

‘‘reasonably necessary’’ requirement in

paragraph (c); the below questions do

not affect CSHOs’ authority under

paragraphs (b) and (d).

1. Should OSHA defer to the

employees’ selection of a representative

to aid the inspection when the

representative is a third party (i.e.,

remove the requirement for third-party

representatives to be reasonably

necessary to the inspection)? Why or

why not? Please provide any relevant

information, examples, considerations,

and/or data to support your position.

2. Should OSHA retain the language

as proposed, but add a presumption that

a third-party representative authorized

by employees is reasonably necessary to

the conduct of an effective and thorough

physical inspection of the workplace?

Why or why not? Please provide any

relevant information, examples,

considerations and/or data to support

your position.

3. Should OSHA expand the criteria

for an employees’ representative that is

a third party to participate in the

inspection to include circumstances

when the CSHO determines that such

participation would aid employees in

effectively exercising their rights under

the OSH Act? Why or why not? If so,

should OSHA defer to employees’

selection of a representative who would

aid them in effectively exercising their

rights?

XIII. Public Participation

Inspection-related requirements

promulgated under the Occupational

Safety and Health Act of 1970 (OSH

Act) are regulations, not standards.

Therefore, this rulemaking is governed

by the notice and comment

requirements in the Administrative

Procedure Act (APA), 5 U.S.C. 553,

rather than by section 6(b) of the OSH

Act (29 U.S.C. 655(b)) and 29 CFR part

1911 (both of which apply only to

promulgating, modifying or revoking

occupational safety or health standards).

The OSH Act requirement for the

agency to hold an informal public

hearing on a proposed rule, when

requested, does not apply to this

rulemaking. See 29 U.S.C. 655(b)(3).

The APA, which governs this

rulemaking, does not require a public

hearing; instead, it states that the agency

must ‘‘give interested persons an

opportunity to participate in the

rulemaking through submission of

written data, views, or arguments with

or without opportunity for oral

presentation.’’ 5 U.S.C. 553(c). To

promulgate a proposed regulation, the

APA requires the agency to provide the

terms of the proposed rule (or a

description of those terms) and specify

the time, place, and manner of

rulemaking proceedings. See 5 U.S.C.

553(b). The APA does not specify a

minimum period for submitting

comments.

In accordance with the goals of

Executive Order 12866, OSHA is

providing 60 days for public comment

(see section 6(a)(1) of Executive Order

12866).

A. Public Submissions

OSHA invites comments on all

aspects of the proposed rule. OSHA will

carefully review and evaluate any

comments, information, or data

received, as well as all other

information in the rulemaking record, to

determine how to proceed. When

submitting comments, please follow the

procedures specified in the sections

titled

DATES

and

ADDRESSES

of this

document. The comments should

clearly identify the provision of the

proposal being addressed, the position

taken with respect to each issue, and the

basis for that position. Comments, along

with supporting data and references,

submitted by the end of the specified

comment period will become part of the

rulemaking record, and will be available

for public inspection at the Federal

eRulemaking Portal (http://

www.regulations.gov) and at the OSHA

Docket Office, 200 Constitution Avenue

NW—Room N–2625, Washington, DC

20210. (See the section titled

ADDRESSES

of this document for additional

information on how to access these

documents.)

XIV. List of Subjects in 29 CFR Part

1903

Occupational safety and health,

health, administrative practice and

procedures, law enforcement.

XV. Authority and Signature

Douglas L. Parker, Assistant Secretary

of Labor for Occupational Safety and

Health, U.S. Department of Labor,

authorized the preparation of this

document pursuant to 29 U.S.C. 657; 5

U.S.C. 553; Secretary of Labor’s Order

8–2020, 85 FR 58393 (2020).

Signed at Washington, DC.

Douglas L. Parker,

Assistant Secretary of Labor for Occupational

Safety and Health.

For the reasons stated in the

preamble, OSHA proposes to amend 29

CFR part 1903 to read as follows:

PART 1903—INSPECTIONS,

CITATIONS AND PROPOSED

PENALTIES [AMENDED]

■1. The authority citation for part 1903

is revised to read as follows:

Authority: 29 U.S.C. 657; Secretary of

Labor’s Order No. 8–2020 (85 FR 58393); and

5 U.S.C. 553.

■2. In § 1903.8 revise paragraph (c) to

read as follows:

§ 1903.8 Representatives of employers

and employees.

* * * * *

(c) The representative(s) authorized

by employees may be an employee of

the employer or a third party. When the

representative(s) authorized by

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Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Proposed Rules

1

EPA has made it clear that general exemptions

for small cold cleaner degreasing operations are not

allowed. See Memorandum from Richard Rhoads,

EPA OAQPS, to Director, Air and Hazardous

Materials Division, Regions I to X, Clarification of

Degreasing Regulation Requirements, September 7,

1978. See 2–24, Solvent Metal Cleaning, in the

‘‘Issues Relating to VOC Regulation Cut Points,

Deficiencies, And Deviations’’ guidance, as revised

on January 11, 1990.

employees is not an employee of the

employer, they may accompany the

Compliance Safety and Health Officer

during the inspection if, in the judgment

of the Compliance Safety and Health

Officer, good cause has been shown why

their participation is reasonably

necessary to the conduct of an effective

and thorough physical inspection of the

workplace (e.g., because of their

relevant knowledge, skills, or

experience with hazards or conditions

in the workplace or similar workplaces,

or language skills).

* * * * *

[FR Doc. 2023–18695 Filed 8–29–23; 8:45 am]

BILLING CODE 4510–26–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA–R05–OAR–2021–0477; FRL–9848–01–

R5]

Air Plan Approval; Indiana; Volatile

Organic Compounds; Cold Cleaner

Degreasing

AGENCY

: Environmental Protection

Agency (EPA).

ACTION

: Proposed rule.

SUMMARY

: The Environmental Protection

Agency (EPA) is proposing to approve

revisions to the volatile organic

compound (VOC) rules contained in the

Indiana State Implementation Plan

(SIP). Indiana modified its rules to

provide an additional option for

compliance with the volatile organic

compound (VOC) vapor pressure limit

for solvents used in cold cleaning

degreasing operations. In addition, rule

language was updated for clarity and

consistency.

DATES

: Comments must be received on

or before September 29, 2023.

ADDRESSES

: Submit your comments,

identified by Docket ID No. EPA–R05–

OAR–2021–0477 at https://

www.regulations.gov, or via email to

blakley.pamela@epa.gov. For comments

submitted at Regulations.gov, follow the

online instructions for submitting

comments. Once submitted, comments

cannot be edited or removed from

Regulations.gov. For either manner of

submission, EPA may publish any

comment received to its public docket.

Do not submit electronically any

information you consider to be

Confidential Business Information (CBI)

or other information whose disclosure is

restricted by statute. Multimedia

submissions (audio, video, etc.) must be

accompanied by a written comment.

The written comment is considered the

official comment and should include

discussion of all points you wish to

make. EPA will generally not consider

comments or comment contents located

outside of the primary submission (i.e.,

on the web, cloud, or other file sharing

system). For additional submission

methods, please contact the person

identified in the

FOR FURTHER

INFORMATION CONTACT

section. For the

full EPA public comment policy,

information about CBI or multimedia

submissions, and general guidance on

making effective comments, please visit

https://www2.epa.gov/dockets/

commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT

: Matt

Rau, Environmental Engineer, Control

Strategies Section, Air Programs Branch

(AR–18J), Environmental Protection

Agency, Region 5, 77 West Jackson

Boulevard, Chicago, Illinois 60604,

(312) 886–6524, rau.matthew@epa.gov.

The EPA Region 5 office is open from

8:30 a.m. to 4:30 p.m., Monday through

Friday, excluding Federal holidays and

facility closures due to COVID–19.

SUPPLEMENTARY INFORMATION

:

Throughout this document whenever

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean

EPA.

I. Background

On July 14, 2021, Indiana submitted

a request to revise the VOC rules in its

SIP. The revisions are to the 326 Indiana

Administrative Code (IAC) Article 8

Volatile Organic Compound rules.

Indiana submitted revisions to the

following: 326 IAC 8–3–1,

‘‘Applicability and exemptions’’; 326

IAC 8–3–2, ‘‘Cold cleaner degreaser

control equipment and operating

requirements’’; 326 IAC 8–3–3, ‘‘Open

top vapor degreaser operation’’; 326 IAC

8–3–4, ‘‘Conveyorized degreaser control

equipment and operating

requirements’’; and 326 IAC 8–3–8,

‘‘Material requirements for cold cleaner

degreasers’’.

Indiana’s July 14, 2021, submission,

included a previous version of 326 IAC

8–3–1, effective on June 9, 2021. EPA

found concerns with that version of 326

IAC 8–3–1(a)(1) as it added qualifying

language so that the rules would only

apply to sources ‘‘with the potential to

emit VOC emissions of greater than or

equal to fifteen (15) pounds per day.’’

This would constitute a relaxation of the

Clean Air Act (CAA) requirement for

VOC reasonably available control

technology.

1

On January 23, 2023, Indiana

submitted a revised version of 326 IAC

8–3–1, effective January 4, 2023, which

removed the exemption language from

326 IAC 8–3–1(a)(1).

Indiana’s current SIP VOC rules

require sources operating cold cleaning

degreasers to, among other things, use

low vapor pressure solvent, not to

exceed 1 millimeter of mercury (mm Hg)

at 20 degrees Celsius, for cleaning or

degreasing machine parts. These low

vapor pressure solvents do not work

well for some industries. These rules

also allow sources to operate control

systems that demonstrate equivalent or

better emissions control with approval

from both Indiana and EPA.

Indiana revised the control

requirements for sources that use a

solvent with a vapor pressure exceeding

1 mm Hg in 326 IAC 8–3–3, 326 IAC 8–

3–4, and 326 IAC 8–3–8. The revised

rules require VOC emission control with

a capture efficiency of at least 90

percent. The control device must also

either have at least a 90 percent

destruction efficiency or have a VOC

emission outlet concentration of less

than 50 parts per million by volume.

Indiana’s rules also require compliance

procedures. The changes replace the

previously approved provision allowing

an alternate VOC emission control

system with approval of both Indiana

and EPA in 326 IAC 8–3–3 and 326 IAC

8–3–4. This VOC control system

requirement is an additional option in

326 IAC 8–3–8.

Indiana noted that, for some

companies, the use of low vapor

pressure solvents under 1 mm Hg

results in poor performance and solvent

contamination. Such sources cannot

recycle the solvent because of the

potential contamination. Such sources

will thus often hand-clean machine

parts, which results in all the solvent

evaporating and thus being emitted into

the air. Indiana further noted that hand-

cleaning also produces a large amount

of material that usually must be

managed as hazardous waste, as the rags

are contaminated with solvent and ink.

Instead, the revised rules set parameters

for control systems that specify standard

VOC capture and control requirements

for all users, which are expected to

reduce the amount of solvent used and

the amount of hazardous waste

generated.

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